The NSW Project on the Inheritance Needs of Aboriginal People : Solving the Problem by Making Culturally Appropriate Wills

The aim of this project was to establish the particular needs of Aboriginal people in relation to death and inheritance, with particular focus on NSW. It required both legal and empirical research. Because of the diversity of nations and cultures within Aboriginal communities a range of communities were consulted from metropolitan, suburban, coastal and rural areas in NSW. The findings included the very low rate of will-making (approximately 2%) amongst Aboriginal people in Australia compared with non-Indigenous people, and a range of problems caused by intestacy regimes in particular in relation to burial disputes and miss-matched kinship. Several issues emerged: the most significant was concern about disputes about disposal of bodies, which every community consulted had been affected by. Other concerns included problems with funeral insurance, planning for end of life, recognition of the mismatched kinship assumed by the common law compared with Aboriginal people, disputes over property, where to keep a will safely, and protection of customary law. Misconceptions which might contribute to the low rate of will-making included the idea that one must own significant property before one can make a will. Participants were often not aware of what a will could do, and were very interested in the role of executor as the person with control of the body. Hostility to the legal system lessened once the idea that a will has in it what the testator wishes; and in most cases participants were extremely interested in making a will as soon as this was made clear. The findings showed that it may be more important for Aboriginal people to make a will than for non-Indigenous people, and that resistance to will-making may reduce as Aboriginal people become aware of wills and lawyers drafting wills become aware of how to make culturally appropriate wills. To this end the project was completed by the production of The Aboriginal Wills Handbook: a practical guide to making culturally appropriate wills for Aboriginal people by Prue Vines. This is accessible at the website of the NSW Trustee & Guardian and is aimed at both Aboriginal people and their lawyers